ON APPEAL FROM THE COUNTY COURT AT LUTON
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE HAMBLEN
LORD JUSTICE HENDERSON
| DYLAN POWELL
|- and -
|DACORUM BOROUGH COUNCIL
Andrew Lane and Ruchi Parekh (instructed by Dacorum BC Legal Department) for the Respondent
Hearing date: 12 December 2018
Crown Copyright ©
Lord Justice McCombe:
(B) Background and History of the Proceedings
"45. Neither you nor anyone living with or visiting you must be guilty of conduct which is capable of amounting to anti-social behaviour …It includes (but is not limited to) …abusive or insulting words or gestures…using or allowing the Property to be used for …dealing in, cultivating…or the illegal possession or use of any controlled substances…
47. Neither you nor anyone living at or visiting you must commit any arrestable offence within the local area of your Property.
48. Neither you nor anyone living at or visiting the Property must use the Property for any illegal activity."
"10.2. The Defendant has been a tenant of the Claimant for over 14 years.
10.3. The Defendant is in receipt of housing benefit and ESA.
10.4. The Defendant suffers with both mental and physical disabilities. He suffers with low moods, depression, drug misuse and hepatitis C. The Defendant is also a recovering alcoholic and heroin addict.
10.5. On 19 July 2011 the Defendant suffered significant injuries and attended the Urgent Care Centre following an assault. The Defendant was hit over the head with a metal bar following a road rage incident. The Assailant was not caught even though the matter was reported to the police.
10.6. The Defendant has been using cannabis to assist with his disabilities and low mood. The Defendant has been advised by medical experts that cannabis has a therapeutic and stabilising effect upon the Defendant's mental health condition. [slightly corrected by me]
10.7. The Defendant no longer smokes cannabis at all. However he does ingest cannabis but does not do this at the property. He is currently addressing his Hepatitis C with the assistance of his consultant and seeking an alternative medicine to ease the effects of his disabilities. …"
No reference was made in the Defence to the PSED.
"…the court orders that
1. The defendant give the claimant possession of 1 Marnham Rise, Hemel Hempstead, Herts, HP1 3JL on or before 6 November 2015.
2. This order is not to be enforced so long as the defendant do strictly observe the above terms and conditions of the tenancy agreement in respect of the property, which for the avoidance of doubt includes those terms not related to the allegations listed in the particulars of claim.
3. This order do remain in force until 4pm on 23 October 2017, unless varied or discharged by the court.
4. The defendant do pay the claimant's costs in bringing the claim, to be subject to detailed assessment if not agreed, and strictly subject to S26 Legal Aid sentencing and punishment of offenders act 2012."
The order also recited that the court considered it was reasonable to make an order for possession, which could be suspended on the terms set out.
"(a) that a person has engaged, or (if the order is not made) is likely to engage, in disorderly, offensive or criminal behaviour on the premises, or
(b) that the use of the premises has resulted, or (if the order is not made) is likely to result, in serious nuisance to members of the public, …
and that the order is necessary to prevent the behaviour, nuisance or disorder from continuing, recurring or occurring."
In view of the breaches of the suspended possession order, reflected (if by nothing else) by the findings in the Closure Order proceedings, on 23 February 2016, the Council requested the issue of a warrant to recover possession of the Property. Later, on 22 April 2016, the Closure Order was extended for a further 3 months to 25 July 2016.
"11. If the Warrant of Possession is executed and I am evicted from my property permanently, I will not have anywhere else to go. I am not able to stay with any friends permanently and I will end up being street homeless. It is unlikely that the council will assist me with any other housing as I will be a person deemed to have made myself intentionally homeless. I suffer from a number of very severe health problems including anxiety, depression and Hepatitis C. I am currently awaiting treatment for Hepatitis C which can not proceed unless I am suitably housed."
Again, there was no mention of the PSED.
"I have also considered section 149 of the Equality Act 2010. I am aware of the Defendant's medical issues and have balanced his needs and interests against those of others who need accommodation. There is nothing to suggest that the Defendant will suffer any particular hardship which he cannot fairly be asked to bear. He does not suffer from any complex housing needs which cannot be met by the provision of accommodation elsewhere. There is nothing to suggest he would be unable to find accommodation elsewhere. He has done so whilst the Closure Order has been in place and he has not requested to return to his flat to gather any belongings. He was also given a tagged curfew in September 2016 for crimes committed in April 2014 to reside at 47 Martindale Road between the hours of 1900 and 0700, evidence that Mr Powell is capable and able to find alternative accommodation when necessary. In view of the seriousness and repeat criminal behaviour of Mr Powell, I feel it is necessary, proportionate and reasonable to seek possession of 1, Marnham Rise."
(C) The Deputy District Judge's judgment
- "We will thoroughly investigate complaints…"
- "…We have a statutory duty to inform other services…if there are …adults who may be vulnerable…"
- "We will consider all possible powers, civil and criminal, available to use to take appropriate action"
- The Claimant will "fully investigate the complaint which may involve interviewing any alleged perpetrator and may involve interviewing third party witnesses"
- "ASB will be dealt with, fairly and proportionately ["]
Our policy is to:
3.1 Take any necessary early action to protect people and property
3.2 Investigate the circumstances and seek to understand all the facts of the matter reported to us
3.3 Seek always to resolve cases at the lowest level of intervention, taking formal action when the ASB is serious or persistent or when it threatens people's safety or health
3.4 Use any of the tools and powers available to us under the law and Council policy according to our best professional judgment
3.5 Take into account (and adjust our approach as necessary) when a victim or perpetrator is a vulnerable person…"
He noted that the policy also included reference to the Equality Act 2010 requiring that disability be taken into account when deciding to proceed with legal action.
"I have asked myself if the absence of a complaint since July 2016 is sufficiently persuasive to allow me to conclude that there is a sound basis that the Defendant's previous conduct will not recur. I regret that it is not…In this case, the Defendant has a long history of drug abuse, and although he may have ceased using it since July last year, I do not have cogent evidence that there will be no recurrence of cannabis use or drug dealing."
"…a social landlord does not have to accept a tenant who sets out to breach terms of his tenancy and disables the landlord from providing accommodation in more deserving cases. Here I also consider it is appropriate to have regard to the effect that drug dealing has had on the Defendant's neighbours, who should not have to put up with it, and they should not have to live with the worry that it will recur."
"161. …I have found that after the original possession order was suspended, the Defendant repeatedly breached it. Even though there is no evidence of conduct giving rise to complaint since the defendant returned to the premises in July 2016, I consider there is a real risk that if the warrant is suspended, the Defendant, with his long criminal record relating to possession and possession with the intent to supply drugs, and the breaches of the SPO, will resume those activities. Such resumption would have a severe impact on others living near the premises and on the ability of the Claimant to meet its legitimate objectives."
The Deputy District Judge considered again whether the Council's legitimate aims could be achieved while proportionately preserving Mr Powell's occupation of the Property and he found they could not.
"168. Even if I had found that there was a breach of the Public Sector Equality Duty by seeking a warrant before considering the need to remove from the Defendant the disadvantage of his impaired mental health. I accept Miss Parekh's submission that any breach could be remedied by giving proper consideration at a later stage: Barnsley Metropolitan Borough Council v Norton  EWCA Civ 834.
169. I accept Mrs Ashworth's evidence that she carried out a proportionality assessment, albeit after the warrant had been issued, having seen Dr Sadler's letter.
170. The Claimant was criticised for failing to consider a lower level of intervention. For the reasons given elsewhere in this judgment, I do not consider a lower level of intervention would have been appropriate in the light of the breaches of the SPO and the effect of the Defendant's ASB on others who live near the premises.
171. In the circumstances, I consider that the Public Sector Equality Duty does not provide grounds for suspending the warrant."
He dismissed Mr Powell's application.
(D) The Appeal to HH Judge Bloom
"Ground 3 – in the exercise of his discretion the Learned Judge reached a decision that was plainly wrong in finding that…
(xii) There was no breach of the Public Sector Equality Duty and/or the Equality Act 2010 elements of its ASB policy when Mrs Ashworth stated in evidence:
a) She did not know whether drug dependency, anxiety and depression made him vulnerable.
b) She did not know that Hepatitis C could make someone disabled under s6 of the Equality Act 2010.
c) That any breach of a suspended possession order would cause the Respondent to execute the order.
d) That she did not consider whether a positive condition may work at this stage.
e) That there were no contemporaneous documents showing Equality Act considerations and that the only consideration was in a document titled "proportionality assessment" however it was admitted that her Barrister had told her to do that and her boss just signed it.
f) That she had no training on the Equality Act and did not know what was meant by public sector equality duty or a "proportionate means of achieving a legitimate aim".
"39. In these circumstances it is my conclusion, having reviewed the evidence, that the original decision to issue a warrant was not in breach of the PSED as there was no evidence of a disability despite the enquiries made by the council. In this case where Mr Powell had had solicitors involved as recently as October 2015 without medical evidence or PSED being referred to, I consider that the enquiries made were sufficient. She did not know of his disabilities despite efforts to enquire about the same and hence the PSED was not engaged at that time. The judge was therefore plainly entitled to conclude there was no breach of the duty. Further if in error, he failed to address this issue adequately in his judgment, I have concluded that there was no breach in any event."
"44. If one stands back and reads the proportionality assessment and considers the overall evidence of the council and the medical evidence, it is plain that the council has had due regard to the PSED. The substance of the proportionality assessment does not demonstrate a failure to consider other options as Mr Lee argues. If one reads the document as a whole it is quite clear that the council have considered that they have run out of options since they issued a NSP in 2014. They had tried visiting and engaging with him, Mrs Ashworth made clear she would have offered support if he was willing to engage, they have served a NSP, they have issued possession proceedings and agreed a SPO. None of it has stopped him from continuing to not only possess but to deal drugs at his premises. He has continued to contest his responsibility even as at 2017. The council had concluded that if he "remains a DBC tenant he will continue to breach his tenancy agreement. This will simply put a further strain on resources and deeply affect the lives of those living around him". The assessment referred to Section 149 and had due regard to his medical issues which were set out in the assessment but concluded that he could find other accommodation and that his health needs were not so complex that they could not be met by finding alternative accommodation. It was pointed out that he had found alternative accommodation during the closure order. The weight to be attached to the factors is a matter for the council not the court. The assessment plainly had due regard to the consequences of eviction on Mr Powell given his disabilities and nonetheless concluded that to continue with the eviction was the only option. The fact that the council do not consider an injunction as an option is not a reason to challenge their conclusion. The council are at the end of a long and arduous procedure whereby various lesser options have been considered. The council were satisfied (as the judge also found) that Mr Powell would not change his ways going forward and hence the only option at this time was eviction notwithstanding his disabilities. The assessment plainly took account of the PSED and the judge was right to so conclude."
"49. Having read the evidence and the findings of fact, had there been any defects in the judge's reasoning, I would nonetheless have upheld his decision as I am entirely satisfied that the council had complied with the policy throughout and had continued to review the situation in the light of new medical evidence. The proportionality assessment plainly demonstrated that it continued to assess the position when new evidence came to light and was very much alive to the policy issues.
50. Indeed a different conclusion would have likely led to an argument that his decision was perverse given the overwhelming evidence against Mr Powell and the findings of fact that Mr Powell was still lying to the court as to his involvement in drug dealing. …"
(E) The Appeal to this Court
"26. (1) As stated by Arden LJ in R (Elias) v Secretary of State for Defence  1 WLR 3213;  EWCA Civ 1293 at , equality duties are an integral and important part of the mechanisms for ensuring the fulfilment of the aims of anti-discrimination legislation.
(2) An important evidential element in the demonstration of the discharge of the duty is the recording of the steps taken by the decision maker in seeking to meet the statutory requirements: R (BAPIO Action Ltd) v Secretary of State for the Home Department  EWHC 199 (QB) (Stanley Burnton J (as he then was)).
(3) The relevant duty is upon the Minister or other decision maker personally. What matters is what he or she took into account and what he or she knew. Thus, the Minister or decision maker cannot be taken to know what his or her officials know or what may have been in the minds of officials in proffering their advice: R (National Association of Health Stores) v Department of Health  EWCA Civ 154 at [26 – 27] per Sedley LJ.
(4) A Minister must assess the risk and extent of any adverse impact and the ways in which such risk may be eliminated before the adoption of a proposed policy and not merely as a "rearguard action", following a concluded decision: per Moses LJ, sitting as a Judge of the Administrative Court, in Kaur & Shah v LB Ealing  EWHC 2062 (Admin) at [23 – 24].
(5) These and other points were reviewed by Aikens LJ, giving the judgment of the Divisional Court, in R (Brown) v Secretary of State for Work and Pensions  EWHC 3158 (Admin), as follows:
i) The public authority decision maker must be aware of the duty to have "due regard" to the relevant matters;
ii) The duty must be fulfilled before and at the time when a particular policy is being considered;
iii) The duty must be "exercised in substance, with rigour, and with an open mind". It is not a question of "ticking boxes"; while there is no duty to make express reference to the regard paid to the relevant duty, reference to it and to the relevant criteria reduces the scope for argument;
iv) The duty is non-delegable; and
v) Is a continuing one.
vi) It is good practice for a decision maker to keep records demonstrating consideration of the duty.
(6) "[G]eneral regard to issues of equality is not the same as having specific regard, by way of conscious approach to the statutory criteria." (per Davis J (as he then was) in R (Meany) v Harlow DC  EWHC 559 (Admin) at , approved in this court in R (Bailey) v Brent LBC  EWCA Civ 1586 at [74-75].)
(7) Officials reporting to or advising Ministers/other public authority decision makers, on matters material to the discharge of the duty, must not merely tell the Minister/decision maker what he/she wants to hear but they have to be "rigorous in both enquiring and reporting to them": R (Domb) v Hammersmith & Fulham LBC  EWCA Civ 941 at  per Sedley LJ.
(8) Finally, and with respect, it is I think, helpful to recall passages from the judgment of my Lord, Elias LJ, in R (Hurley & Moore) v Secretary of State for Business, Innovation and Skills  EWHC 201 (Admin) (Divisional Court) as follows:
(i) At paragraphs [77-78]
" Contrary to a submission advanced by Ms Mountfield, I do not accept that this means that it is for the court to determine whether appropriate weight has been given to the duty. Provided the court is satisfied that there has been a rigorous consideration of the duty, so that there is a proper appreciation of the potential impact of the decision on equality objectives and the desirability of promoting them, then as Dyson LJ in Baker (para ) made clear, it is for the decision maker to decide how much weight should be given to the various factors informing the decision.
 The concept of 'due regard' requires the court to ensure that there has been a proper and conscientious focus on the statutory criteria, but if that is done, the court cannot interfere with the decision simply because it would have given greater weight to the equality implications of the decision than did the decision maker. In short, the decision maker must be clear precisely what the equality implications are when he puts them in the balance, and he must recognise the desirability of achieving them, but ultimately it is for him to decide what weight they should be given in the light of all relevant factors. If Ms Mountfield's submissions on this point were correct, it would allow unelected judges to review on substantive merits grounds almost all aspects of public decision making."
(ii) At paragraphs [89-90]
" It is also alleged that the PSED in this case involves a duty of inquiry. The submission is that the combination of the principles in Secretary of State for Education and Science v Tameside Metropolitan Borough Council  AC 1014 and the duty of due regard under the statute requires public authorities to be properly informed before taking a decision. If the relevant material is not available, there will be a duty to acquire it and this will frequently mean than some further consultation with appropriate groups is required. Ms Mountfield referred to the following passage from the judgment of Aikens LJ in Brown (para ):
'….the public authority concerned will, in our view, have to have due regard to the need to take steps to gather relevant information in order that it can properly take steps to take into account disabled persons' disabilities in the context of the particular function under consideration.'
 I respectfully agree…….."
The case has been cited, with apparent approval, in judgments in the Supreme Court in Hotak v Southwark London Borough Council  AC 811, 841, paragraph 73, per Lord Neuberger of Abbotsbury and in R (MA & others) v Secretary of State for Work and Pensions  1 WLR 4550, 4562, paragraph 24, per Lord Toulson.
"Q … The next part I need to take you to is important. Do you know what the public sector equality duty is?
Q So, when you say "I have also considered section 149 of the Equality Act", that is the public sector equality act.
A Right, well, I've not heard----
Q You couldn't have.
A -- I've not heard it put in that----
Q So you couldn't have considered it properly.
A Well, the Equality Act, I've considered Mr Powell's disabilities according to the latest letter, and the fact that, when the closure order was in place, he found alternative accommodation and, when he was allowed back into the property, he had been sentenced and he was curfewed to another address between the hours of, I think it was, seven at night until seven in the morning, so he stayed at another property. So, despite Mr Powell having these disabilities, if you like now, I don't see – I have considered that and I don't see – that that would impact him finding alternative accommodation.
Q Yes, if I put it to you in questions, tell me if I'm right. So, you now accept that he has a section 6 equality disability?
A Well, that's what we've received on the letter.
A Now, yeah.
Q Yes. You've then considered the position that, when he was out of the property, he was able to find a place to stay, you say.
A Hmm hmm.
Q And so you say, based on that, it was reasonable to conclude that, if he is evicted, he will be able to find somewhere to stay?
A Yeah, why wouldn't he?
Q The public sector equality duty goes slightly further than that, and it is to do with having due regard – have you heard the expression "due regard"?
A Hmm hmm.
Q What do you understand by "having due regard"?
A I think so.
Q Sorry, what do you understand----
A Oh sorry, no.
Q -- to having due regard to the public sector equality duty? What do you understand by that expression?
A I'm not sure that I could explain it, to be honest, other than that you've taken it into consideration, and I believe I've taken it into consideration.
Q But is it only what you've just told me you took into consideration, or was there something else that's not on here?
A No, that's what I've just told you.
Q (After a pause) I am sorry about this. (After a pause) Have you considered how you could foster good relationships between people who have the same disability as Mr Powell and people who don't at all?
A What do you mean?
Q Section 149. That's one of the considerations you have to do.
A How I could foster good relations?
Q Sorry, have I told you something completely new?
A No, you haven't You've just worded it----"
At that stage the learned judge intervened to say that he was not going to permit Mr Lee to conduct a "testing" process of the witness's knowledge of the PSED in general.
"50. …The Recorder, in  of his judgment, was of the opinion that Aster Communities showed that it was the eviction itself that was the central act in the drama of possession proceedings against a disabled tenant, and that even though the court may earlier have held that the making of a suspended order for possession was not discriminatory, it nevertheless had, of its own motion, to reconsider the same question at the point when such an order came to be enforced.
51. In my judgment, there is nothing in the judgments in Aster Communities supporting such an approach and I respectfully regard the Recorder's different view as wrong. The logic of his view is that in a case in which, following a s.15(1)(b) proportionality analysis, a court makes a lawful outright 28-day possession order with which the tenant fails to comply, so that the landlord has then to issue a warrant for possession, the tenant is at that point entitled to require the court to embark afresh upon the same proportionality exercise that it had made when ordering possession. That is also the logic of Mr Fitzpatrick's submission. The suggestion is, in my judgment, mistaken and I would reject it. When making the possession order, the court has undertaken the relevant proportionality inquiry. It has satisfied itself that possession must be given and that, if it is not, the order can lawfully be enforced. The order is binding between the parties. The tenant can have no right, absent any relevant change of circumstances, to require the court to re-consider the same question upon the landlord's claim to enforce the order. The recognition of such a right would be a recipe for repeated applications of a vexatious nature. There is no such right."
(The reference to "Aster Communities" is to Aster Communities Ltd. v Akerman-Livingstone  UKSC 15.)
"22. However, in the discharge of its duties under Part VII of the 1996 Act the council is subject to the duty under section 49A(1)(d) of the 1995 Act, and now under section 149 of the 2010 Act, as is shown by the decision in Pieretti's case itself. In any event, since the council is aware that Sam has special needs because of her disability, it will have to take those into account in deciding whether accommodation to be offered to her is suitable, and it may need to undertake an up-to-date assessment of those needs for this purpose. Because the accommodation in which Sam is currently housed belongs to the council, the council will have control over the process of enforcing any possession order, and any decision to enforce that order would itself be subject to the duty now imposed by section 149 of the 2010 Act."
"34. Mr Read submitted that the possession order should be set aside and the possession proceedings dismissed. I can see no proper basis for such an order. Even though, on the basis on which I proceed, the council was in breach of its duty before the proceedings were started, it would be open to it to remedy that breach by giving proper consideration to the question at any later stage, including now in the light of our decision. What is needed is for the council to give proper consideration to the factors which are relevant under section 49A(1)(d) of the 1995 Act, above all to the need for suitable accommodation to be found for Sam, her parents and her baby. We were told that an application has now been made for assistance under Part VII of the 1996 Act, though only as recently as the week before the hearing of the appeal. In practical terms the council will have to offer reasonably suitable alternative accommodation to the Norton family, and the Norton family must accept that it will have to move when suitable alternative accommodation is made available. One side effect of the relatively active debate between counsel and the court in the course of the hearing was that it will have become clear that what is needed is that both sides should address, in a collaborative way, the need for suitable alternative accommodation to be made available, sooner rather than later. As mentioned earlier, the council can decide whether, and if so when, the possession order is to be enforced, and its decision in that respect is also one in taking which it is under the section 49A(1)(d) duty, or rather, now, the equivalent duty under section 149 of the Equality Act 2010."
(See also paragraphs 26 and 34 to the same effect.)
"41. In my judgment the starting point is to be appropriately cautious when invited to treat any part of the judgment in a leading case as if it were of statutory force, with a general effect dissociated from the particular facts under review. Parts of both paras 78–79 of Lord Neuberger PSC's judgment in Hotak's case are plainly and precisely directed to the conduct of a vulnerability assessment rather than, for example, to a suitability assessment (as here) or to the question whether an applicant has made himself intentionally homeless (as in Pieretti's case  PTSR 565). Thus the four-stage approach calling for sharp focus in para 78 is plainly aimed at assisting the reviewing officer in deciding whether the applicant is vulnerable. Equally, Lord Neuberger PSC's acceptance that "in many cases" a reviewing officer might discharge a PSED even if ignorant of it was expressly directed to the conduct of a vulnerability assessment. What emerges as a general principle is the sharp focus required of the decision-maker upon the relevant aspects of the PSED where it is engaged by the contextual facts about each particular case."
"46. Nor in my judgment does the engagement of the PSED in a particular case absolve the reviewing officer from taking into account factors relevant to suitability other than those thrown into focus by the terms of section 149, such as those specified in the HA section 210 (and orders made pursuant thereto) and those set out in the code of guidance. As McCombe LJ said in Bracking's case  Eq LR 60, para 60, considerations required to be taken into account are to be placed side by side with all other pressing circumstances of whatever magnitude.
47. I consider that the judge was wrong to base his analysis upon a supposed general principle "in almost all circumstances" requiring the reviewing officer to spell out in express terms reasoning about whether an applicant does or does not have a protected characteristic, whether the PSED duty is in play and if so with what precise effect, even though the adoption of such a disciplined approach may in many cases put the issue of compliance with the PSED beyond reasonable doubt. In a case such as the present, where all the applicant's criticisms of the adequacy of his accommodation derive from precisely identified aspects of his disabilities, and from their alleged consequences, it seems to me that, adapting Lord Neuberger PSC's words in Hotak's case  PTSR 1189, para 79, a conscientious reviewing officer considering those objections in good faith and in a focused manner would be likely to comply with the PSED even if unaware of its existence as a separate duty, or of the terms of section 149."
(F) Proposed Result
Lord Justice Hamblen:
Lord Justice Henderson:
I also agree.